The Death Penalty has been on hold in Florida for some time. While the Florida Supreme Court struck down the current law for its non-unanimous procedure, that law was only passed a year ago to address earlier decisions that prohibited the enforcement of the death penalty, also for procedural reasons. The courts have made it clear they will require a unanimous finding by a jury before a judge can impose death. A new bill being prepared would address that. Once the law is reestablished, the prosecutors across the state will have to review the cases since 2002 to determine if they wish to proceed on new death penalty sentencing hearings: which will affect a few cases here in Southwest Florida.
Florida effectively has no death penalty right now. First, the procedure that had been in effect for years was ruled unconstitutional by the U.S. Supreme Court, in the Hurst decision. Then, the legislature rushed through a new law to try to fix it, but the new law also failed to require a unanimous recommendation by the jury, and the Florida Supreme Court struck it down, as well. A new bill seeks to correct that shortcoming.
This bill in the State Senate is the first step in changing the law to make a lawful death penalty. The Florida House would also have to pass a law, and then for it to be signed by the governor before the State can resume seeking the death penalty. Right now the death penalty is on hold, pending a new law. The House may end up looking at even more extensive changes to the death penalty when they take up the issue, probably in this upcoming session, as well. The legislature may also look at changes to the Stand Your Ground Law this year.
Florida once again has no death penalty, in two separate, highly anticipated rulings today, the Florida Supreme Court sent the legislature back to the drawing board. However, the court did not go as far as some advocates wanted, and declined to commute all current death sentences to life in prison. There are still questions to be answered about every inmate currently sitting on Florida’s death row- 385 total at this time.
One ruling is in regards to the new death penalty procedure laid out by the legislature earlier this year after the Supreme Court ruling in the Hurst case. The Supreme Court had declared Florida’s procedure unconstitutional because it gave the judge and not the jury the power to impose a death sentence. The legislature went back to the drawing board, and rewrote the procedure, but the new procedure was quickly challenged under the Constitution because it did not require a unanimous jury verdict. The court in its ruling today in Perry v. State, found that the Constitution requires that the must make a unanimous finding of at least one of the aggravating factors, and that the recommendation of the death penalty must also be unanimous.
The other ruling that came out today addressed the Hurst case. The US Supreme Court had ordered the court to consider whether the error was harmless. The Florida Supreme Court has now ruled that the error was not harmless, and that Hurst is entitled to a new sentencing hearing. And there’s the rub for the state, because the current procedure was found to be unconstitutional. The court made it clear in Perry that the Florida death penalty is not unconstitutional… but it functionally might as well be, because there is not Constitutionally permissible way to impose such a sentence, until the legislature goes back to the drawing board again.
The Court has not addressed how these procedural changes will affect the other inmates on death row whose sentences were imposed before Hurst, under the old procedure. Normally, procedural changes don’t retroactively affect sentences, and the Court was clear today that their ruling is procedural. However, I think the courts will be hard-pressed to allow 300+ executions to go forward on an unconstitutional death penalty sentencing procedure. we will continue to watch on Crimcourts. Check out our earlier coverage of the death penalty issues.
I was actually kind of surprised they had to litigate this issue, what with the right to remain silent being a Constitutionally protected right. Last week, the Florida Supreme Court unanimously agreed with the 4th Circuit Court of Appeal that it is improper for the state to comment on the the pre-Miranda silence of a Defendant who does not take the stand. Basically, if someone exercises their right to remain silent… it cannot be used against them. I suspect the Florida Supreme Court was suprised the issue needed to be litigated, the 4th DCA opinion that they upheld was just issued on February 18. The appellate court certified the question as one of great public importance, but that is still an impressive turnaround at the highest court in the state.
Donna Horwitz, via FL DOC
The Court sent back the conviction of Donna Horwitz, convicted of first degree murder in the death of her husband. When police responded to the shooting, they asked Ms. Horwitz several questions, and she stood mute. The prosecutor successfully argued at trial that her silence was indicative of a consciousness of guilt, and she was convicted and sentenced to life in prison. The Court ruled, consistent with longstanding precedent around the country, that his is unfair comment on the right to remain silent. It would essentially force a defendant to testify to rebut the assertion, which is improper.
Further, the court observed that the evidence of silence would not be relevant and is inadmissible under basic rules of evidence. While silence potentially could indicate consciousness of guilt, the meaning is ambiguous. It could be shock, or a concern that officers would not believe the story, or many other things. Due to the ambiguity, it is not relevant to the elements of the crime, and would also be inadmissible for this reason.
You have a right to remain silent… use it. The State cannot use it against you if you do.
Posted in 5th Amendment - Miranda Rights, 6th Amendment - Fair Trial, Criminal Law, Florida, Gray Menace, Uncategorized
Tagged 5th ammendment, donna horwitz, florida, jupiter, miranda, murder, silence, supreme court
Florida’s Death Penalty laws are once again in disarray.
The Supreme Court
Last year, the Supreme Court struck down the procedure Florida was using to determine when the death penalty should be imposed, in the Hurst case. That meant that there was functionally no death penalty in the state of Florida. The legislature moved quickly to amend the law to establish a new procedure to prosecute the death penalty in Florida, and a new version was signed into law in March. Now, all that work is out the window…
Judge Milton Hirsch, a circuit judge in Miami-Dade, has ruled that the new procedure is also unconstitutionally inadequate. The Florida procedure does not require a unanimous jury verdict before the death penalty can be imposed. Florida and Alabama are the only states that did not require unanimity, and that specific issue was not discussed by the Supreme Court in the Hurst case. Ultimately, the issue is likely to be appealed to the Florida Supreme court, and potentially the U.S. Supreme Court again, but Judge Hirsch’s opinion is the first to address the issue since the new procedure was passed.
Hirsch was critical of the law, finding that the changes were not enough. He wrote, “Arithmetically the difference between twelve and ten is slight, but the question before me is not a question of arithmetic. It is a question of constitutional law. It is a question of justice.”
Timothy Hurst, currently on Death Row
Meanwhile, the other issue up in the air is whether the Hurst decision is retroactive. That is, are all of the Floridians on death row entitled to new sentencing hearings?- 390 of them are currently on death row. While they would still be subject to a new death sentence, a ruling finding that Hurst is retroactive would likely spare a great number of inmates that the state would not wish to retry their sentencing hearings.
While it seems to be a no-brainer that if the procedure used to impose death was unconstitutional that the sentences could not stand, the courts have often held that these types of rulings are procedural, and do not apply retroactively. It will be interesting to see what the Florida Supreme Court does on the issue. Until then, Florida executions will have to be on hold. The Florida Supreme Court recently heard arguments regarding whether Hurst will mandate that he, and many other similarly situated cases will be reduced to life without parole.
Posted in 14th Amendment - Due Process, 6th Amendment - Fair Trial, Criminal Law, Death Penalty, Florida, Supreme Court, Uncategorized
Tagged death penalty, Jury, murder, procedure, ring, sentencing, supreme court, timothy hurst, trial
Atty Spencer Cordell on NBC-2 [Who Dey]
The link is up
from last night’s NBC-2 follow-up story regarding use of surveillance cameras. The law is a little unclear, but there’s no doubt the best practice is for law enforcement to get a warrant when they are going to use the cameras: even the guy from the camera company recommends it. And everybody, prosecutors and defense attorneys, agree that when video surveillance is used, it needs to be disclosed when a case goes forward. My friend Rene Suarez, who is quoted at the beginning of the story, makes a great point: if the use of video cameras is not disclosed, it shuts the judicial system out of the analysis regarding the legality of the tactics. That’s eliminating judicial oversight. If nothing is being done inappropriately, the investigators should have nothing to hide.
Here’s a link to the story, I will try to embed it, below.
NBC-2.com WBBH News for Fort Myers, Cape Coral & Naples, Florida
And here’s a link to our story yesterday.
Posted in 4th Amendment - Search & Seizure, 6th Amendment - Fair Trial, Criminal Law, Florida, Fort Myers / Lee County / Southwest Florida #SWFL
Tagged brady, david hodges, discovery, nbc, rene suarez, search and seizure, spencer Cordell, surveillance, video
NBC-2, which has been doing several pieces on the use of video cameras by law enforcement, continues to examine concerns about the practice in SW Florida. They ran a story yesterday that indicates that video surveillance is being used, and not disclosed, in the course of certain investigations. The story told by former prosecutor Stephanie Hoffman in that article was especially troubling: law enforcement did not reveal the use of video cameras until the middle of a trial of a drug dealer. The late disclosure meant not only a discovery violation, but that the prosecutor had to reduce the charge and offer probation instead of the mandatory prison sentence because she was afraid if she had gone forward with the trial, that the case would have been thrown out of court.
NBC-2 spoke to me about the story, so watch for the follow up, tonight. I have the benefit of the perspective of having been on both sides since I was a prosecutor before I was a defense attorney. My take, from either side of the aisle is, if there is video being taken, it should be disclosed. The Supreme Court has made it very clear that the government doesn’t just get to use the good evidence and pretend the bad evidence doesn’t exist. The accused has an absolute right to see evidence that may suggest their innocence, known as “Brady Evidence”.
And if I was a prosecutor, and there was video of narcotics traffic at the house of an accused drug dealer, you’re darn right I’m going to want to know about that evidence, too! All evidence that gets collected needs to be disclosed, otherwise we lose confidence in the fairness of the justice system: which is bad for everyone.